THE FACTS ABOUT A MISCARRIAGE OF JUSTICE IN DENMARK

 

MOGENS HAUSCHILDT

VS.

DENMARK

(11/1987/134/188)

The Judgment In English (pdf): 24th May 1989 The Judgment Hauschildt v. Denmark

The Judgment In French (pdf): The Judgment Hauschildt Affair 24th May 1989 (French)

Direct to the European Court of Human Rights website 

 

The Judgment

This judgment against Denmark from the European Court of Human Rights somewhat overshadowed something far more important to me – all the many injustices. Firstly I was innocent; secondly, I had been subjected to the most horrendous treatment during my many years of pretrial incarceration. Thirdly the great abuse and misuse of power in my case by the Danish authorities. Finally, perhaps a little naïve the fact that the authorities had fooled the public at large by manipulating the media. The last would most likely bring a smile to some politicians since they know the public is always fooled by them.

It was not a “victory” for me to see Denmark judge, in fact, no victory at all. I felt like others who have suffered grave injustices that nothing can ever replace the injustices suffered and certainly not some court, even the European Court of Human Rights. A real victim of injustices is a corpse, not a living thing – it is lying there DEAD.

The Judgment Importance

The judgement’s importance to human rights has gone far beyond Denmark’s borders. Through the years I have seen that many references are made to the judgment against Denmark, every year judgments in other cases by the United Nation and their International Tribunals make reference to the judgment in my case. There appears to be a huge list of references to the judgment ranging from Africa to Asia and cases in Europe under the European Council.

The Court of Human Rights verdict did bring some realism to the reality as to Denmark’s reputation because injustices did take place in Denmark and still do take place I am sure. Nevertheless, I believe that Denmark somehow lost something very special, like when a woman loses her virginity, which meant they could not just point at other nation’s injustices in the future since they were not faultless themselves. When you live in a glasshouse, you can hardly throw stones at others.

One respected academic Professor of Law Ditlev Tamm has said that a “judicial revolutions as to human right” has taken place in Denmark. Some law academics have expressed that big changes have taken place in the judicial mentality. Moreover, the judgment in my case at the Court of Human Rights was a “prestige loss” for Denmark causing tremors in the judicial system. I have always maintained that big changes to any system in Europe have to come from outside the country.

Apart from the “forced” changes in Denmark as a result of the judgment, Norway changed also its administrative justice act and law as a result of my judgment against Denmark. The judgments also have an influence on several other countries laws when they made changes and amendments to their Administrative of Justice Laws.

After my judgement against Denmark in 1989, Denmark incorporated the European Convention of Human Right into the Danish Law.  It took nearly another 3 years until 24 April 1992 to do this.

I recently read apart from the legal proposal of incorporating the ECHR law from the special Commission established interestingly only 5 days before the Judgement against Denmark by FREDERIK WAAGE.

A chapter from this Report states (in Danish): “Ganske få dage efter nedsættelsen af EMRK-udvalget, ved folketingsbeslutning af 19. maj 1989, skete der imidlertid noget andet, som man også kan forestille sig har haft en væsentlig indflydelse på Højesterets ændrede praksis vedrørende konventionen. Den 24. maj 1989 blev Danmark for første gang nogensinde dømt for krænkelse af EMRK, i Hauschildt-sagen.  Afgørelsen må have ramt Højesteret hårdt, ikke mindst fordi den netop vedrørte et forhold ved domstolene – retfærdig rettergang – og således i forstærket grad faldt tilbage på højesteretsdommerne selv. Man kan muligvis argumentere for, at ændringerne i Højesterets begrundelser var et led i en slags selvransagelse ovenpå Hauschildtafgørelsen.) Part of this conclusion:” Højesteret ændrede praksis i 1989. Om det skete for at foregribe et senere lovgivningsinitiativ, som en reaktion på afgørelsen i Hauschildtsagen, eller fordi Højesteret havde ladet sig påvirke af den retspolitiske debat om menneskerettigheder, ved vi ikke. Men det er tankevækkende, at Højesteret først på et tidspunkt, hvor man var blevet underkendt i Strasbourg, og et lovforberedende arbejde på menneskeretsområdet var i gang, begyndte at fremkomme med de præjudikater, der styrkede konventionens retskildemæssige værdi og dermed placerede EMRK i den fremtrædende position, den har i dag. Man kan undre sig over, hvilken interesse Højesteret kunne havde i, at menneskerettighederne forblev en usikker retskilde, og spørge, om Hans Gammeltoft-Hansen havde ret i den hypotese, han fremlagde i 1976 om den positivistiske traditions generelle tilbageholdenhed med at tillægge menneskerettigheder større retskildeværdi.” 

The special Commission in Denmark started on the 19th May 1989, my judgement against Denmark was a slap in the face to the Danish Supreme Court’s judges and hit the Supreme Court very hard. The Supreme Court Judges had to truly took at themselves and their previous so. called “high stand” as to Danish justice. See the document in Danish.

A Postscript Irony

A postscript irony, considering what the British authorities (Conservative Party and others) succeeded to do to me later, with help from Denmark (see Postscript). My Judgement against Denmark was used by Margaret Thatcher to save General Pinochet from extradition to Chile. The rule was notably applied by the House of Lords in 1998 when it bent over backwards to do justice to General Pinochet by annulling its initial 3-2 decision against him.

The British barrister Geoffrey Robertson QC represented me together with his assistant, now Sir Kier Starmer QC, (later Director for Public Prosecution in the United Kingdom and Labour’s shadow secretary of Brexit).

Geoffrey Robertson QC has written many books and in his book Crimes Against Humanity write about fundamental criminal justice

“First and foremost is the presumption of innocence, described as the “golden thread” of the common law. It appears in every human rights treaty and in Rule 21 of the Hague Tribunal and as Article 66 of the Rome Statute of International Criminal Court. This presumption has two effects: the prosecution must always bear the burden of proof and must shoulder this responsibility in criminal cases to a high standard, proving the case beyond a reasonable doubt. Although some latitude is allowed in requiring defendants to prove matters of which they should have special knowledge. The general burden at the end of the day must fall on the prosecution. International case laws remarkably unanimous on this point.

Secondly, serious criminal trials must be open to the public. Publicity is the very soul of justice. It keeps the judge while trying, under trial. The “secret court” is a kangaroo or Kafka-esque court, associated over many centuries with gross abuse of power. The public nature of the trial remains the greatest safeguard against the unfair use of criminal proceedings.

The third great safeguard is the independence and impartiality´ of the judges, as individuals with sufficient confidence and backbone to stand up to governments and other power-wielders in the society (not excluding the power of terror and intimidation wielded by criminal gangs). Impartiality is provided for by a rule disqualifying judges for bias, on the principle that `justice must be seen to be done´. It has been rigidly applied by the European Court, ordering the disqualification of judges if they have come from offices connected with the prosecution or, in Hauschildt v. Denmark, have made any prior decision in the case from which bias as to its outcome might reasonably be apprehended. The rule was most notably applied by the House of Lords in 1998 when it bent over backwards to do justice to General Pinochet by annulling its initial 3-2 decision against him.

Nearly 40% of all high court judges were involved with my case at Eastern High Court (Østre Landsret)

Norway’s Rolv Ryssdal

The president of the European Court of Human Rights, when the judgement was passed in my case, was one of Norway’s great and highly respected nationals Judge Rolv Einar Rasmussen Ryssdal. He served for 15 years as the president of the Norwegian Supreme Court until 1981. He becomes president of the European Court of Human Rights in 1985 and served to his death in 1998.

He even as president of the European Court of Human Rights had to fight with his other Scandinavian colleagues, as they voted against the judgment in my case as they were told to do – no doubt by the Danish government, not directly but as brothers in arms, after all, we always vote the same.

He made in the judgment of my case a CONCURRING OPINION in which he truly showed his inside into the Danish “system” and indeed the mentality of the Danish administrative justice system at the time- after all, he knew the Danish mentality as the former president of Norway’s Supreme Court.

As respect to Rolv Ryssdal and his considerable achievements, I should like to quote from parts of a tribute to him from the European Court of Human Rights on their 50th Anniversary.

Tribute to Rolv Ryssdal, ground-breaking reformer the President of the European Court of Human Rights  1985 – 1998

The former president of Norway’s Supreme Court Rolv Ryssdal was president of the European Court of Human Rights when the court passed judgment in my case. He was elected to the European Court of Human Rights in 1973, then a comparatively little-known institution which in the fourteen years of its existence had delivered just seventeen judgments.

In 1980 he was elected vice-president and in 1985 president, succeeding the eminent Dutch lawyer, Gérard Wiarda, who had likewise been president of his country’s Supreme Court. By the time of Ryssdal’s death in February 1998 the European Court had given 733 judgments, 632 of them during his tenure as president and the large majority of the latter with him presiding over the Chamber. Those figures in themselves are an indication of the extent of his influence on the Court’s development and its case-law.

His presidency coincided with a decisive period in the Court’s history in which it clarified the scope of the rights guaranteed in the European Convention on Human Rights.

Rolv Ryssdal was a past master at the sometimes difficult task of guiding the deliberations of judges from widely varying legal traditions and backgrounds. This was admittedly made easier by his natural authority, but it was his mastery of the files and formidable memory that increased his ascendancy. That is not to say that he was authoritarian in his approach, for he was unfailingly courteous.

He combined a fine legal mind with solid Nordic good sense, a feeling for the just compromise with the force of character to carry it through, intellectual rigour with great charm and a lively sense of humour. Strengthening the protection of human rights Rolv Ryssdal was unsparing in his efforts to strengthen the protection of human rights afforded by the Convention.

He insisted on the necessity for the Contracting States to ratify all the additional protocols to the Convention, particularly Protocol No. 6, which prohibits the death penalty in time of peace. He openly criticised states for maintaining reservations to the Convention years, sometimes decades, after ratification.

He also pleaded for the extension of its protection to the weakest members of society, by the introduction of a general prohibition on discrimination (soon to become a reality in the form of Protocol No. 12) and by securing in a protocol effective protection of minorities and detainees.

During his membership of the Court, and especially during his presidency, dramatic changes took place in the European human rights community. The number of Convention Contracting States nearly doubled. Rolv Ryssdal actively supported these changes and the successful integration of the new judges was due in no little measure to his friendliness and understanding.

Over the last few years, he was always available for working meetings with the sometimes hard-pressed judicial authorities of the new Contracting States, struggling to adapt their legal systems to bring them into conformity with the Convention standards and to familiarise themselves and understand the Strasbourg case law.

It was not surprising that as a Supreme Court judge himself he should have been especially sensitive to the place of the national judicial authorities in the Convention system. He never lost an opportunity to stress the importance of their primary responsibility in the protection of fundamental rights and to encourage contacts between national courts and the Strasbourg Court.

Campaign for reform

He had also campaigned for the reform of the European Convention and its institutions and sadly did not live to see the entry into operation of the single full-time Court, which in November 1998 replaced the two original part-time institutions, the European Commission and the Court. However, he was already looking beyond that, keenly aware of the problems that would face the new Court. At a colloquy in Potsdam shortly before his death, he called for further reform of the Convention system to prevent it being submerged by a flood of cases from the new Contracting States.

Rolv Ryssdal will be remembered as an outstanding judge and President of the European Court of Human Rights.

Status Quo

The whole institution and the concept of human rights have gone down the tube. To me the Council of Europe, is just a political forum with no decent agenda, ignoring morals and ethics and indeed human rights. How can anyone speak about human rights with such member countries?

The Council of Europe has become a political institution, and human rights went out of the door.

Just think for a moment, the European Council! I read the other day: Russia will remain in the Council of Europe after ministers at the human rights organisation moved to end a bitter dispute following the annexation of Crimea.

Meeting in Helsinki, ministers of the 47-nation body voted overwhelmingly in favour of a declaration that said “all member states should be entitled to participate on an equal basis” in the council’s committee of ministers and parliamentary assembly.

Ukraine reacted angrily to the decision, which ends five years of wrangling since Russia was stripped of its voting rights in 2014 over the seizure of Crimea. “This is not diplomacy, this is a surrender,” Ukraine’s envoy to the Council of Europe, Dmytro Kuleba, told the AFP.

The parliamentary assembly (Pace), a gathering of MPs from 47 countries due to meet in June, still has to approve a procedural change that would allow Russian members to resume voting.

France and Germany had pressed to reinstate Russia as a voting member of the Council of Europe, which marks its 70th anniversary this month. “It is not in our interests” to keep Russia out, the German foreign minister, Heiko Maas, said.

I have been subjected to the abuse of the European Arrest Warrant and even extradition from German with totally false documentation by the United Kingdom, misleading the highest court in Germany, with fake claims. So I truly know something about justice, something I have learned the hard way and should always have known – there is no justice! Moreover, justice is an illusion.

IMPORTANT PUBLICATIONS

A Selection of Various Documents and Publication from the European Court of Human Rights – visit their website:

http://www.echr.coe.int/ECHR/homepage_en

The European Court of Human Rights – Country Fact Sheets 1959 – 2010 – European Court of Human Rights – Country Fact Sheets 1959-2010

The European Court of Human Rights – In Facts and Figures 2011 – The European Court of Human Rights – In Facts and Figures 2011

The European Convention of Human Rights at 50 – The Europen Convention on Human Rights at 50

The rights to a fair trial – Human Rights Handbooks No. 3 – The right to a fair trial – Human Rights Handbooks No.3.

 

 

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